(HC) Ogle v. Pollard ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 CORKEY DENNIS OGLE, Case No.: 3:20-cv-1115-LAB(KSC) 12 Petitioner, ORDER DENYING PETITIONER'S 13 v. MOTION FOR APPOINTMENT OF COUNSEL 14 MARCUS POLLARD, 15 Respondent. [Doc. No. 19] 16 17 18 19 20 Petitioner Corkey Dennis Ogle, a state prisoner proceeding pro se, has filed a 21 Petition for Writ of Habeas Corpus pursuant to 28 U.S.C § 2254. Before the Court is 22 petitioner’s request for appointment of counsel. For the reasons outlined more fully 23 below, the Court finds that petitioner’s Motion for Appointment of Counsel must be 24 denied. 25 Background 26 Petitioner is currently serving a seven-year to life sentence for murder, robbery, 27 kidnapping, and assault with a deadly weapon. [Doc. No. 4, at p. 1.] He has been in 28 prison approximately 42 years and is 71 years old. [Doc. No. 4, at pp. 1, 17.] Petitioner 1 challenges a September 4, 2019 decision denying him parole under California’s Elderly 2 Parole Program. [Doc. No. 4, at p. 17.] 3 Discussion 4 In Petitioner’s ex parte Motion, he requests that the Court appoint counsel in this 5 case for the following reasons: (1) he does not have the funds to retain counsel on his 6 own; (2) he has minimal education and believes the issues in his case are “somewhat 7 complicated” and require proper legal representation; and, (3) he has inadequate access to 8 the prison law library. [Doc. No. 19, at p. 1.] 9 An indigent’s right to appointed counsel has been recognized to exist “only where 10 the litigant may lose his physical liberty if he loses the litigation.” Lassiter v. 11 Department of Social Services of Durham County, N. C., 452 U.S. 18, 25 (1981). District 12 Courts generally lack authority to require counsel to represent indigent prisoners in 13 habeas cases. Mallard v. U.S. Dist. Court, 490 U.S. 296, 298 (1989). However, in 14 certain “exceptional circumstances,” the Court may request the voluntary assistance of 15 counsel. Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). 16 “A finding of exceptional circumstances requires an evaluation of both the 17 likelihood of success on the merits and the ability of the petitioner to articulate his claims 18 pro se in light of the complexity of the legal issues involved.” Terrell, 935 F.2d at 1017 19 (internal citations omitted). “Neither of these factors is dispositive and both must be 20 viewed together before reaching a decision.” Id. (internal citation omitted). 21 In this case, there is currently no basis to support a finding of exceptional 22 circumstances. First, the record is not sufficiently developed so that the Court could 23 determine the likelihood of success on the merits. 24 Second, a pro se prisoner’s inability to afford an attorney, standing alone, is not 25 enough to show exceptional circumstances. This and other hardships imposed by 26 petitioner’s incarceration “are difficulties which any litigant would have in proceeding 27 pro se; they do not indicate exceptional factors.” Wood v. Housewright, 900 F.2d 1332, 28 1335–1336 (9th Cir. 1990). 1 Third, there is nothing from which the Court could conclude that petitioner lacks 2 || the ability to articulate and prosecute his claims pro se even though he lacks legal 3 || training. The allegations in the Petition are clearly stated, and they are not complex. 4 ||[Doc. No. 4.] Thus far, petitioner has shown an ability to effectively articulate his claims 5 ||and communicate with the Court in this action. 6 Finally, pro se litigants are afforded some leniency to compensate for their lack of 7 training. Accordingly, petitioner’s pro se status and limited access to the prison’s 8 library will be taken into consideration by the Court when his filings are reviewed. 9 CONCLUSION 10 Based on the foregoing, IT IS HEREBY ORDERED that Petitioner’s Motion for 11 || Appointment of Counsel is DENIED. [Doc. No. 19.] 12 IT IS SO ORDERED. 13 ||Dated: November 6, 2020 A /; ) 14 YUL LA ——— 15 Hori. Karen S. Crawford United States Magistrate Judge 16 17 18 19 20 21 22 23 24 25 26 27 28